HONOR ROLL
520th Session, Basic Law Enforcement Academy, 106th Session, Spokane Police Academy
August 7th through December 13, 2000
Highest Scholarship:Quint G. Tibeau - Renton Police Department
Highest Mock Scenes:Ronald R. Voeller - Spokane Police Department
Outstanding Officer:Delmas L. Farrell - Anacortes Police Department
Pistol Marksmanship:Daniel A. Strassenberg - Spokane Police Department
Overall Firearms:Jeffrey M. Harpster - Pasco Police Department
Tactical Firearms:Jeffrey M. Harpster - Pasco Police Department
***********************************
FEBRUARY LED TABLE OF CONTENTS
BRIEF NOTE FROM THE Washington STATE SUPREME COURT...... 2
STATUTE ON SEX OFFENDER REGISTRATION AND COMMUNITY NOTIFICATION SURVIVES CONSTITUTIONAL CHALLENGE ON DUE PROCESS, LIBERTY AND PRIVACY GROUNDS
Personal Restraint Petition of Douglas Earl Meyer, ___ Wn.2d ___ (2001) [2001 WL 9067]...... 2
Washington state Court of Appeals...... 2
DESPITE FACT THAT DRIVER OF STOPPED VEHICLE WAS KNOWN TO BE A COCAINE DEALER AND SEEMED NERVOUS AND EVASIVE, OFFICER’S “OPEN VIEW” OF SUSPICIOUS WHITE POWDER ON DRIVER’S PANTS LEG HELD TO NOT JUSTIFY ENTRY OF VEHICLE TO SEIZE AND TEST THE POWDER
State v. Lemus, 103 Wn. App. 94 (Div. III, 2000)...... 2
STATE CONCEDES ISSUE OF “EXIGENT CIRCUMSTANCES” FOR WARRANTLESS RESIDENTIAL-ENTRY; AND STATE LOSES ON ISSUE OF “ATTENUATION” RE OFFICER’S POST-ARREST IDENTIFICATION OF DEFENDANT; BUT BURGLARY CONVICTION IS UPHELD ON “HARMLESS ERROR” ANALYSIS
State v. Le, ___ Wn. App. ___, 12 P.3d 653 (Div. I, 2000)...... 7
K-12 STUDENT’S VIOLATION OF HIS SCHOOL’S CLOSED-CAMPUS RULE DID NOT JUSTIFY A SEARCH OF THE STUDENT BY A SCHOOL ATTENDANCE OFFICER
State v. B.A.S., ___ Wn. App. ___, 13 P.3d 244 (Div. I, 2000)...... 13
ESCAPEE FROM JUVENILE INSTITUTION HAD NO REASONABLE PRIVACY EXPECTATION AGAINST SEARCH OF RESIDENCE WHERE FRIEND’S FRIEND WAS ALLOWING HIM TO RESIDE
State v. Thang, ___ Wn. App. ___, 13 P.3d 1098 (Div. III, 2000)...... 16
BRIEF NOTES FROM THE Washington STATE Court of Appeals...... 17
1995 AMENDMENT TO PROFITEERING ACT VIOLATED Washington CONSTITUTION’S “SUBJECT-IN-TITLE” AND “SINGLE SUBJECT” REQUIREMENTS -- “OBSTRUCTING “ LAWS LIKELY AFFECTED
State v. Thomas, ___ Wn. App. ___(Div. II, 2000) [2000 WL 1864047]...... 17
POST-TRAFFIC-ARREST WARNINGS REQUIREMENT OF “IMPLIED CONSENT” STATUTE NOT TRIGGERED WHERE NO PROBABLE CAUSE AS TO DUI; HENCE, CONSENTING BLOOD TEST ADMISSIBLE DESPITE OFFICERS’ FAILURE TO GIVE IMPLIED CONSENT WARNINGS
State v. Avery, ___ Wn. App. ___, 13 P.3d 226 (Div. II, 2000)...... 18
ON TOTALITY OF CIRCUMSTANCES, STORE SECURITY PERSONNEL DID NOT VIOLATE “SHOPKEEPERS’ PRIVILEGE” IN HOLDING SUSPECTED SHOPLIFTER UNTIL POLICE ARRIVED
Guijosa, et. al. v. Wal-Mart Stores, Inc., 101 Wn. App. 777 (Div. II, 2000)...... 21
NEXT MONTH -- REVISITING STAATS V. BROWN...... 21
***********************************
BRIEF NOTE FROM THE WASHINGTON STATE SUPREME COURT
STATUTE ON SEX OFFENDER REGISTRATION AND COMMUNITY NOTIFICATION SURVIVES ANOTHER CONSTITUTIONAL CHALLENGE AND DUE PROCESS, LIBERTY AND PRIVACY -- In Personal Restraint Petition of Douglas Earl Meyer, ___ Wn.2d ___ (2001) [2001 WL 9067], the Washington Supreme Court rules, 6-3, that Washington’s sex offender registration and notification laws do not violate constitutional liberty and privacy rights of sex offenders, even though those laws do not provide for a hearing prior to the government’s determination of an offender’s classification.
RCW 4.24.550 and 9A.44.130 require that sex offenders register with their local sheriff. RCW 4.24.550 also permits local law enforcement agencies to, upon the release of sex offenders from confinement, notify the public. The scope of notification permitted under the statutes is based on the risk classification of the offender. Risk classification is initially done by the Department of Corrections (DOC), but local law enforcement agencies make the final determination of risk classification. The statutory scheme makes no provision for notice to or hearing for the offender prior to classification and notice to the public.
In 1994, certain constitutional challenges to this statutory scheme were rejected by the Washington Supreme Court in State v. Ward, 123 Wn.2d 488 (1994). Three years later, the Ninth Circuit of the U.S. Court of Appeals rejected another constitutional challenge to the statutes. Russell v. Gregoire, 124 F.3d 1079 (1997). Now, in a majority opinion authored by Justice Talmadge, the Washington Supreme Court has rejected another constitutional challenge in a decision that will make it difficult for offenders to bring another challenge to the statute based on liberty or privacy rights. The majority opinion in Meyer does note, however, that:
[S]uch offenders are not without avenues of relief if the [DOC] classification recommendation or the local law enforcement agency decision is arbitrary or capricious. These individuals may secure judicial review by writ of certiorari for arbitrary and capricious classification.
Justices Alexander, Johnson and Sanders dissent in the Meyer case, arguing in vain that, by not providing for a pre-classification hearing, the statutory scheme violates an offender’s right to privacy, or, more specifically, the right not to be wrongfully stigmatized and labeled as dangerous.
Result: Affirmance of lower court decisions adverse to sex offenders, Douglas Earl Meyer, Eric L. Erickson, and Bradley T. Sundstrom.
***********************************
Washington STATE Court of Appeals
ALTHOUGH DRIVER OF STOPPED VEHICLE WAS NERVOUS, EVASIVE, AND KNOWN TO BE A COCAINE DEALER, OFFICER’S “OPEN VIEW” OF SUSPICIOUS WHITE POWDER ON DRIVER’S PANTS LEG HELD TO NOT JUSTIFY ENTRY OF VEHICLE TO SEIZE AND TEST THE POWDER
State v. Lemus, 103 Wn. App. 94 (Div. III, 2000)
Facts and Proceedings Below: (Excerpted from Court of Appeals opinion)
Officer [1] saw Mr. Lemus make what the officer believed to be an improper lane change on a city street in Othello. Officer [1] stopped Mr. Lemus's vehicle and asked for back-up, a standard procedure for nighttime traffic stops. Mr. Lemus told Officer [1] he did not have insurance. Officer [1] decided not to charge the improper lane change, but returned to his patrol car to prepare a Notice of Infraction (NOI) for no insurance.
Officer [2] arrived as back up. Officer [1] advised Officer [2] that Mr. Lemus was a known drug trafficker based upon prior contacts with the Othello Police Department. Officer [1] approached Mr. Lemus again from the driver's side of the car while Officer [2] approached from the passenger side. To ensure officer safety, Officer [2] illuminated the passenger compartment of the vehicle with his flashlight. Officer [2] particularly focused his attention on Mr. Lemus's hands. Officer [1] noticed Mr. Lemus appeared nervous, which the officer felt was inconsistent with his prior encounters with Mr. Lemus.
Officer [2] observed that Mr. Lemus kept his right hand motionless on his pant leg. Officer [2] noticed that when Mr. Lemus moved his right hand to accept a pen from Officer [1] to sign the NOI, there was a white powdery substance on Mr. Lemus's pant leg that had been previously concealed from view by Mr. Lemus's right hand and arm. Officer [2] immediately concluded the powder was "very possibly" cocaine. Officer [2] told Officer [1] about the powdery substance. Officer [1] asked Mr. Lemus what the substance was and told him not to move his hands. Mr. Lemus responded by brushing the substance off his pant leg. Officer [1] testified that based upon his training, the powder "resembled" cocaine.
When Officer [1] returned to Mr. Lemus's car with the infraction notice he detected the odor of intoxicants on Mr. Lemus's breath that he had not initially noticed due to the smell of cigarette smoke. After learning of the powdery substance, Officer [1] asked Mr. Lemus to exit the vehicle to perform field sobriety tests (FSTs).
During the FSTs, passed successfully by Mr. Lemus, Officer [3] arrived with the field testing kit and without a warrant removed a sample of the white powdery substance from Mr. Lemus's vehicle. It field-tested positive for cocaine. Officer [1] then arrested Mr. Lemus. Also during the FSTs, Officer [1] noticed a bulge in Mr. Lemus's left front pants pocket. Officer [1] then conducted a pat-down search. During the search, Officer [1] felt a pointed object, which he thought might be a weapon. The object turned out to be a small scale of the type used by drug dealers, but there was no evidence the scale had been used. Later, at the station during a strip-search, approximately 13.7 grams of cocaine was discovered in Mr. Lemus's underwear.
Mr. Lemus's CrR 3.6 motion to suppress the evidence seized from the car and Mr. Lemus's person was denied. Mr. Lemus was found guilty of possessing cocaine at a stipulated bench trial based upon the CrR 3.6 hearing findings. He was given a standard range sentence.
[Officers’ names omitted]
ISSUES AND RULINGS: (1) Was Officer [1] justified in making the initial traffic stop for an improper lane change? (ANSWER: Yes); (2) Were the officers justified in extending the duration of the traffic stop and in requesting that Lemus step out of his vehicle? (ANSWER: Yes, because the officers had a reasonable suspicion that Lemus had committed an alcohol-related offense or other offense in addition to the lane change violation); (3) Does the open view of white powder on the pants leg of a known cocaine dealer justify entry of his car to seize and test the powder? (ANSWER: No, because the interior of a car is entitled to privacy protection); (4) Can the entry of the car and the seizure and testing of the powder be justified as a search incident to a lawful arrest? (ANSWER: No, because the officers did not have probable cause to make a custodial arrest of Lemus until after they field-tested the powder)
Result: Reversal of Adams County Superior Court conviction for possession of cocaine.
ANALYSIS:
(1)Stop for unlawful lane change
The Lemus Court explains as follows that the officer was justified in making the stop of Lemus for the improper lane change:
Officer [1] testified on direct that Mr. Lemus changed lanes before he signaled. On cross, Officer [1] agreed that his written report described Mr. Lemus's action as signaling "as the left front tire crossed the lane line." Officer [1] elaborated by stating the left front of Mr. Lemus's vehicle was "across the lane line." Officer [1] stated his belief that Mr. Lemus had committed "the traffic infraction of failing to signal properly prior to changing a lane." This testimony is sufficient to persuade a fair-minded person that Mr. Lemus crossed the lane line before he signaled.
Conclusion of Law 2 states: "The initial traffic stop for failing to signal intent to change lanes was valid." RCW 46.61.305 partly states:
(1)No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.
(2)A signal of intention to move or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.
Paraphrased in the affirmative, RCW 46.61.305(1) plainly means that the driver must make a lane change safely and with an appropriate signal. RCW 46.61.305(2) clearly requires a signal for at least 100 feet before the lane change. Given the findings, and the clear meaning of RCW 46.61.305, we conclude Officer [1] had probable cause to believe Mr. Lemus had committed an infraction. Accordingly, Conclusion of Law 2 is correct; the initial traffic stop was valid.
[Citations, officer’s name omitted]
(2) Extending the traffic stop to investigate other matters
The Lemus Court explains as follows that the officers were justified in extending the duration of the traffic stop to investigate possible driving under the influence:
A stop for a traffic infraction can be extended solely when an officer has articulable facts from which the officer "could reasonably suspect criminal activity." And the continued detention must be "limited to the length of time needed to investigate the increasingly suspicious circumstances."
Here, Officer [2] sighted the suspected cocaine as Mr. Lemus reached up to sign the NOI. Officer [1] also detected the odor of intoxicants at around the same time. Significantly, Mr. Lemus does not challenge the validity of the pat-down search, which further extended the initial seizure. These facts would lead a reasonable person to suspect Mr. Lemus had committed at least an alcohol offense and thus provided an independent basis for extending the initial seizure.
Mr. Lemus also contends briefly that his removal from the vehicle in order to conduct the FSTs was a mere pretext to allow time for the automobile search. As he cites no authorities to support this proposition, this court need not consider the matter. In any event, there is nothing in the record to suggest the FSTs were conducted for any reason other than a legitimate suspicion that Mr. Lemus was under the influence of alcohol.
In sum, we conclude the extended seizure of Mr. Lemus was reasonable.
[Citations, officer’s name omitted]
(3) “Open view” of suspicious powder and warrantless entry of the car to seize and test it
The Lemus Court explains the difference between “open view” and “plain view” rules. “Open view,” while lawful, is made from outside a protected private area, and an officer making an “open view” observation requires additional justification (an exception to the search warrant requirement) to enter the private area, while “plain view” assumes the officer is already lawfully present in the protected private area. The Court explains that the officers here made only “open view” observations from outside the car, and therefore were not justified in seizing the powder and testing it:
Here, the State contends the warrantless search and seizure fell under the "plain, or open view exception" to the warrant requirement. The "plain view" doctrine applies after the officer intrudes into an area or activity where a reasonable expectation of privacy exists. If the officer has made a justifiable intrusion and sights contraband, he can seize the evidence without a warrant. But, the plain view doctrine justifies a seizure solely where the officer has legal "access" to the seized contraband.
By contrast, the "open view" doctrine applies when an officer observes contraband from a "nonconstitutionally protected area." The "open view" observation is thus not a search at all but may provide evidence supporting probable cause to constitutionally search; in other words, a search pursuant to a warrant.
Here, Officers [1] and [2] stood outside the automobile parked on a city street and conducted a valid, routine traffic stop. Mr. Lemus does not have any expectation of privacy on a city street. In other words, Mr. Lemus cannot claim constitutional privacy protection in the places where these officers stood. Further, Officer [2]'s use of a flashlight, as a routine officer safety measure, did not turn the observation into "an intrusive method of viewing."
An officer's act of observing the interior of an automobile through its windows while the vehicle is parked in a public place is not a search "in the constitutional sense." Simply put, the "plain view" doctrine does not apply if the contraband can be viewed from outside the vehicle. Accordingly, the observation of the powdery substance on Mr. Lemus's pant leg was not a search; it was an "open view" observation of "that which was there to be seen."
Consequently, the trial court erred in concluding that Officer [2]'s observations justified "a plain-view search of Mr. Lemus' person and the front seat of the vehicle."
[Citations, officers’ names omitted]
(4) Search incident to arrest
Finally, the Lemus Court turns to the only search warrant exception -- search incident to arrest -- that might arguably justify the officers’ entry of Lemus’s car to seize the suspicious white powder. The Court concludes as follows that this exception does not apply because, in the Court’s view, the officers developed probable cause to arrest Lemus only after they tested the powder:
Consistently, a search incident to a custodial arrest may precede the formal arrest, so long as the search and arrest are closely related in time and place and the searching officer has probable cause to arrest before the search begins. "The arrest need not precede the search, but it must be contemporaneous with the search." Assuming the search and arrest were closely related in time and place, the critical question is whether Officer [1] had probable cause to arrest Mr. Lemus prior to the search. Importantly, the trial court did not conclude, and the State does not argue, that Officer [1] had probable cause to arrest Mr. Lemus prior to the search.
In any event, it is an unchallenged finding that the officers believed that testing was the "only reliable" method of identifying cocaine. And other unchallenged findings show that Officer [1] did not arrest Mr. Lemus until after the sample recovered from the car tested positive for cocaine. Consequently, it appears probable cause for the arrest was based solely on the fruits of the search.
Because the State does not argue any other exception to the warrant rule applies, we decide the trial court erred in concluding the seizure was a permissible search incident to arrest. Consequently, the search of the car was unconstitutional under article I, section 7.